Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574
MIGRATION – student visas for overseas residents – conditions of visa governed by Act and Regulations and Conditions promulgated pursuant to Regulations – cancellation of student visa based on shortfall in attendance at tertiary institution – shortfall referrable to illness and return to China for operative procedure – Federal Court decision substantially restricted cancellation on non-attendance grounds – executive moved to negative consequences of Federal Court decision by statutory and regulatory amendments – amendments applicable to unexpired visas such as held by applicant once restored on administrative review – Tribunal reviewed cancellation decision in favour of overseas student in purported adoption of purposive approach to interpretation – whether Tribunal erred on its review of cancellation of visa in favour of student – whether room for purposive approach – recourse to extrinsic materials of the Parliament – Minister’s costs of the Court’s proceedings not allowed on discretionary grounds – liberty to apply as to final orders.
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS v HOU
N 1324 of 2001
CONTI J 8 MAY 2002 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1324 OF 2001
BETWEEN:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS APPLICANT
AND:
DAYIN HOU RESPONDENT
JUDGE:
CONTI J
DATE OF ORDER:
8 MAY 2002
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The decision of the Migration Review Tribunal made on 22 August 2001 be set aside.
2. Liberty to either party to apply on seven days’ notice.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1324 OF 2001
BETWEEN:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS APPLICANT
AND:
DAYIN HOU RESPONDENT
JUDGE:
CONTI J
DATE:
8 MAY 2002
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicable regulatory scheme
The Respondent (“Mr Hou”) is a national of the Peoples Republic of China, who was born on 17 October 1979.…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
MIMA v Hou [2002] FCA 574
Case
[2002] FCA 574
Decision Date
CaseChat Overview and Summary
The matter of MIMA v Hou involved a dispute regarding the cancellation of a visa under Australian migration law. Mr Hou, the visa holder, had his visa cancelled following a breach of the attendance requirements for his student visa. The case was brought before the Migration Review Tribunal, which found in Mr Hou's favour, determining that he had substantially complied with the conditions of his visa despite the breach. The Minister for Immigration and Multicultural Affairs sought judicial review of the Tribunal's decision. The primary issues for the court to determine were whether the Tribunal's decision was authorised by the relevant legislation and whether it involved an error of law.
The court found that the Tribunal had indeed applied the wrong legal test in its decision. The Tribunal had adopted a test of "substantial compliance" with the visa conditions, which was not aligned with the statutory requirements. The applicable legislation mandated mandatory cancellation upon a finding of breach of the attendance condition, without any discretion on the part of the Tribunal to consider whether the breach was substantial or not. Additionally, the court determined that the Tribunal failed to apply the correct statutory framework, particularly in relation to the mandatory cancellation provisions and the interpretation of the relevant migration regulations. The Minister's contention that the Tribunal's decision did not conform to the statutory requirements and involved an error of law was upheld by the court.
Accordingly, the court set aside the decision of the Migration Review Tribunal made on 22 August 2001. The court granted liberty to either party to apply for further orders on seven days' notice. This decision underscores the importance of strictly adhering to statutory mandates in migration cases, particularly where the consequences for the visa holder are significant.
Orders
Orders of the court
1. The decision of the Migration Review Tribunal made on 22 August 2001 be set aside.
2. Liberty to either party to apply on seven days’ notice.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
CONTI J
The concluding submissions of Mr Hou’s migration agents in the Tribunal below were in the following terms:“1.The decision to cancel the visa was made one day after the applicant’s enrolment in a registered course. Applying the principles in Nong, combined with the operation of Migration Legislation Amendment (Overseas Students) Act 2000, there could be no breach of the attendance requirement prior to the conclusion of the course or the first term/semester of the course.2.In the alternative, and if the Tribunal finds that a breach had occurred, the cancellation was made pursuant to s 116(1) and not s 116(3) and is therefore discretionary. Even if the decision to cancel were (sic) made under s 116(3), cancellation would be discretionary, following the judgment in Shrestha v MIMA.3.The visa holder’s present position and the circumstances surrounding the breach justify the exercise of discretion in his favour.”The Tribunal decision The Tribunal found on 22 August 2001 that Mr Hou “had substantially complied with the conditions attached to a visa last held”, referring thereby to the following circumstances:(i)Mr Hou became ill whilst studying at Astral College, and sought medical advice; he was diagnosed with fatigue, and rest was recommended;(ii)As a result of the illness, he missed three weeks’ study;(iii)In December 2000, he travelled back to China for the spring festival, and upon returning to Australia, he learnt that Astral College had gone into liquidation; he then set about finding an alternate education provider; and(iv)Mr Hou’s breach in relation to his attendance at Astral College was “not a deliberate flouting” of the conditions attached to the visa, and was explained by Mr Hou as based on medical grounds corroborated by the medical evidence on the DIMA file, which demonstrated his asserted basis for absence from Astral College for the periods of time from 16 to 24 October 2000 and from 6 November to 21 November 2000. The Tribunal concluded with the finding that the breach of visa conditions constituted by attendance of Mr Hou at only 75% of classes at the Astral College “was not a significant breach of the conditions attached to the visa, and is explained through the medical evidence on file”. Presumably because of the detailed information which Mr Hou put before the Tribunal in relation to his periods of non-attendance, the Tribunal took the view that what may be thought to have been a condition precedent to the operation of paragraph (c) of Condition 8202, namely “In the case of a holder whose education provider keeps attendance records…” was not an issue. The Minister’s contentions The grounds for the application for review were stated by Counsel for the Minister to be first, that the Tribunal’s decision was not authorised by the Act or the Regulations (s 476(1)(c)), and secondly, that the decision involved an error or law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal (s 476(1)(e)). The following matters were relied upon as making out each of those two statutory grounds of review:“(i)Whereas the Tribunal found that [Mr Hou] had breached Condition 8202, the Tribunal failed to appreciate that the legislation required mandatory cancellation once that finding was made. [The Minister] refers to section 116(1)(b) and (3), regulation 2.43(2)(b) and the Migration Legislation (Overseas Students) Act 2000 (including item 4 of Schedule 4 of that Act);(ii)The Tribunal applied the wrong test in deciding the application, namely a test of “substantial compliance” with the Condition 8202, which was not authorised by the applicable legislation [referred to in (i)];(iii)Alternatively, the Tribunal applied the wrong test in so far as it saw a breach of Condition 8202 as giving rise to a discretion to cancel, when no such discretion was conferred by the legislation and the legislation instead required mandatory cancellation when there was a breach of Condition 8202;(iv)The Tribunal ought to have asked, but did not ask, whether it was satisfied that the respondent had complied with each relevant paragraph of Condition 8202.”